4-58 



^wHM^^nutT'' 



f — -yD\ 



THE 



HABEAS CORPUS, 



MARTIAL LAW 



By ROBERT L. BRECK 



Prepared for the Danville Quarterly Review for December, 1861. 



CINCINNATI: 

RICHARD H. COLLINS, PRINTER. 
25 Wi<i Fourth Street. 

186i>. 




Gass. 
Book. 



/ - \±s 



THE 



HABEAS CORPUS, 



MARTIAL LAW 



By ROBERT L. BRECK. 



Prepared for the Danville Quarterly Review for December, 1861. 



CINCINNATI: 

RICHARD H. COLLINS, PRINTER, 

25 West Fourth Street. 

1862. 






LL. 
WUeMc 



^ 



PREFACE 



The Correspondence herewith given will explain, in large part, this publi- 
cation. 

To complete the explanation it is necessary to add: that the writer having 
received no reply to the request made toward the conclusion of his first 
letter; and the December No. of the Review having been issued with his name 
continued upon the cover as one of the conductors of the work, notwithstand- 
ing his expressed desire that his connection with it should be regarded as 
previously terminated; has seen no course left him but to disavow the connec- 
tion in some other way. And further, that, of different methods of doing this, 
the one both least offensive to his brethren from whom he has differed and 
demanded injustice to himself, has appeared to him, to be, to lay the correspon- 
dence, together with the obnoxious Article, before the readers of the Review. 
If he shall also, hereby, direct the attention of any who have not heretofore in- 
vestigated them, to the vital questions discussed in the Article, he will have 
another reason for satisfaction in the choice of this particular method. 

He appears in this form before the public with regret and diffidence. First, 
because it is repugnant to his feelings to be brought into open difference with 
brethren, among whom are those whom from his youth he has regarded with 
admiration and affection, and whose friendship has been to him a prized and 
hereditai'y possession. Secondly, because the Article, being a non-professional 
discussion of great legal and Constitutional questions, and having been pre- 
pared in a way which the latitude and freedom of a Review allow, is not 
such as he would have volunteered before the public as an independent pub- 
lication. He does not profess to have done much more than to bring together 
the leading views and main arguments of several papers; all of which are not 
likely to fall into the hands of any large number of the readers of a Review 
such as he was writing for. He would repudiate any design, in what he has 
done, to embarrass the Government in any of its legitimate ends and meas- 
ures; and would express his earnest protest against the intolerance which 
seeks to fix this stigma upon any who venture to express their opposition to 
what they believe to be illegal acts and courses of our national administra- 
tion — especially when these are held by them to be inimical to personal lib- 
erty and republican institutions. Freedom of discussion will not cripple or 
seriously embarrass any government or administration that is worthy of the 
confidence of the people. 



4 PREFACE. 

Such is the excitement of the times and the effect of the intolerance alluded 
to, in closing the ear of a large portion of the public to every one upon -whom 
a suspicion of unfriendliness to the Government may be, justly or unjustly, 
fastened, he deems it proper here to say this much of himself: That he pro- 
fesses and purposes to be a loyal citizen: that he knows no State government 
which has any claim upon his allegiance, but that at Frankfort; that he 
knows no national government that can properly claim his allegiance, but that 
at Washington: that of each of these he claims that it is his government; and 
that he will sustain them both to the extent of his ability and influence, in 
all measures which he believes to be just and Constitutional; that yet he does 
not consider it either incumbent on him, or patriotic, to approve, indiscrimi- 
nately or without question, all the things that may be done by them. Of the 
wretched strife now pi-evailing in our country — as to its origin or merits or 
settlement — he has said nothing in these pages — and, therefore, can have 
said nothing discordant with the utterances which had been made upon these 
subjects in the Review. In his humble measure, and at the only time and in 
the only way he believes it could have been secured, he has labored for the 
preservation of the Union. Since the sword has been made the arbiter, he has 
felt that he can only stand in his lot and await the issue. 

The Article which is now given to the readers of the Review, was, the large 
part of it, written and in the hands of the printer of the Association, and a 
portion of it in type, when the printing of it was arrested. The preparation 
of the manuscript, then discontinued, has, since the purpose of publication 
in this form, been completed after notes which had been preserved. 

It only remains here to give the Third of the "Articles of Association," which 
were designed to state the chief heads of agreement amongst the persons who 
associated themselves for the purpose of establishing and controlling the 
Danville Review: 

"Every member shall publish, of his own composition, whatever he pleases; 
without submitting it to the judgment of any one. All articles shall oi'dina- 
rily be published in the order in which they are received by the printer: but 
articles of Members shall have preference of those written by persons not 
members; and no article of the latter sort shall be received by the printer, 
except through a member; and no member shall have credit on his 50 pages, 
for articles thus passing through his hands. No direct controversy between the 
Members, or between articles however furnished, shall be allowed in the pages 
of the Review." 



CORRESPONDENCE. 



Danville, Ky., Oct. 29, 1861. 
REV. R. L. BRECK, Maysville, Ky.: 
Dear Brother : 

At a meeting of the Review Association, held at 
Danville on the 23d inst., for the purpose of considering the financial condi- 
tion of our Magazine, and the material for the December Number, I, (as pro 
tern. Editor,) laid before the members present a letter from our Publisher, Mr. 
Collins, touching the above named interests. In this letter Mr. C, in enu- 
merating the Articles on hand, or promised, mentioned that you were prepar- 
ing one with the following caption: "Martial Law and the Writ of Habeas 
Corpus;" in which you propose to review two pamphlets by Judge Nicholas, 
and the decisions of Justices Treat and Taney. The members of the Associa- 
tion thinking a position taken upon this subject of vital importance to our 
interests, and fearing your conclusions might be adverse to the action of the 
General Government, directed me to request Mr. Collins to inform us as to the 
bearing of your article. To this request he replied that he was unable to tell. 
At another meeting, held Oct. 28th, the following resolution was adopted, nem. 
con., and I was directed to communicate it to you: 

"We are not willing to commit our Review to an authoritative declaration on 
the vexed law question, of the Right to suspend the Writ of Habeas Corpus : 
more especially, if the declaration be adverse to the action of the Executive ; 
and would exceedingly regret if anything should now be published in the 
pages of our work, which might appear unfriendly to the action of the Gen- 
eral Government. We, therefore, earnestly hope and request, (while acknowl- 
edging your rights, according to the terms of our original Articles of Associ- 
tion,) that if the sentiments of your Article are in any way hostile to, or of 
such a character as to embarrass, the action of the Government in our present 
political distress, you will withhold it: at least until such time as its publica- 
tion will be looked upon only as affecting the discussion of an abstract prin- 
ciple." 

It is proper to add that there were present at this meeting the following 
members: Drs. Breckinridge, Humphrey, Landis, Smith, Yerkes, and myself. 
At the previous meeting, Professor Matthews was present, and Dr. Humphrey 
was absent. 



6 CORRESPONDENCE. 

We may be entirely mistaken as to our fears in regard to the position you 
will take in your Article ; and, therefore, all our anxiety may he unnecessary, 
as well as seem ungenerous to you. But, feeling as we do that an utterance 
in our pages against the Government, would he not only discordant with its 
previous deliverances, hut certain death to its present prospects ; we feel sure 
that, writing as we do in the spirit of brotherly kindness, you cannot be of- 
fended at our request. 

I hope to hear from you soon. 

In conclusion I remain, 

Your brother in Christ, 

JACOB COOPER. 



Maysville, Monday, Nov. 4, 1861. 
REV. JACOB COOPER: 

My dear Brother : 

Having been absent a few days from this place, 
I found this morning at the Post Office your communication of the 29th Oct. 
It occasioned some surprise, but no other feeling. I was ignorant of the views 
of the other brethren of the Association, upon the questions discussed in my 
Article; but had rather supposed they would agree in general with my own — 
at least had no reason to suppose they would be materially different. In a 
personal interview with Mr. Collins, however, after his return from Danville 
and after the suggestion of a possible discrepancy, I authorized him to make 
known to any of the brethren who might desire to know, the general drift of 
the article. I am not able to see that the grounds I have taken are discordant 
with any "previous deliverances" in the Review, as I regard the questions I 
have discussed perfectly separable and separate from others previously dis- 
cussed, touching the state of the country. And I do not see how any " author- 
itative declaration " can be made, in a work in which we are required to publish 
over some permanent signature, and charged with an individual responsi- 
bility by written agreement. * 

As to the article proving " certain death to the present prospects" of the Re- 
view, allow me to say — that I had supposed the object of the work was to 
form and lead public sentiment, and not to follow it — to seek after truth in 
free discussion, and not success by conformity to popular opinion; and further — 
that there seems to me a reasonable ground for difference of opinion, as to 
whether the mind of the reading public is such as that an expression of such 
views as I have put into the Article, would destroy or cripple the work. 

I have written this much, however, not in the way of a plea for the Article — 
that I have instructed Mr. Collins to withhold — but because it seemed neces- 



* The writer was under the impression that the obligation to use a signature 
or initial, or other uniform designation, was in the Articles of Association. 
Upon examination he finds that it was in a resolution adopted by the Associa- 
tion, since the organization. It is also stated in the Explanatory Note in the 
first number of the Review. 



CORRESPONDENCE. 7 

sary in justice to myself. I have regarded myself from the beginning as but 
little more than a nominal member of the Association, and consented to be- 
come connected, and have remained connected with it, not because I had any 
views to publish, but from my friendliness to the enterprise ; and not because I 
thought I could be of service to it, but because, at the time it was begun, others 
thought I could be. I am sensible that I am of but little consequence to the 
Association, and have rendered but little service to it. 

There have been some things in tbe Review from which I differed widely, 
and things, too, which I thought would greatly impair its popularity ; but I 
have not believed that I had the right, and have not had the disposition to 
challenge them. 

Under all the circumstances, the action of so many of the brethren — and 
in the form in which it has been taken — is as binding on me as any written 
agreement, to the same effect, could be. The article, therefore, has been 
promptly withdrawn. 

I see, and have seen from the beginning, the difficulty of conducting a work 
upon the nominal plan of the Review. In spite of articles of agreement 
guaranteeing the freedom of discussion, there must be some restraint; and I 
am satisfied it would be better for one or two persons to assume the entire 
responsibility. As to myself, it seems plain to me that I ought to withdraw 
from the Association; and, accordingly, request that my connection with it 
may be regarded as now terminated. This is done in perfect kindness to the 
members, all of whom I have reason to regard as friends and Christian brethren; 
and some of whom, whom I know better, I admire, and am warmly attached to. 

I would like, also, to be allowed to withdraw in a way that will put me right 
before my friends. For whilst the circle is small in which the matter will re- 
ceive any attention, yet I desire as much as brethren whose influence and repu- 
tation are wider, that my record, in relation to the tremendous events that are 
passing, shall correctly represent me to any who now have interest enough in 
me to observe my course, and to my children in after years. I do not wish, by 
an abrupt and unexplained termination of my connection with the Review, to 
leave room for incorrect and injurious inferences. I would like to be allowed a 
statement, of a dozen lines on the cover — and which shall be made perfectly 
acceptable to the brethren — of the simple fact in relation to the matter! 
which will leave me under no necessity ever after to make an explanation. 

I desire to assure yourself, and, through you, the brethren in Danville, of 
my kind and fraternal regard. Truly yours, 

ROBT. L. BRECK. 



Danville, Ky., Nov. 8, 1861. 
REV. R. L. BRECK: 

Dear Brother : 

Your letter of Nov. 4th, has been laid before the 
Association, and I am directed by the members present to say to you, that they 
are much pained at your determination to withdraw from us ; and to express 
their earnest desire that you will reconsider it. 



8 CORRESPONDENCE. 

We remain in ignorance of the drift and intention of your Article ; and are, 
therefore, unable to do more than to disclaim all purpose of any interference 
beyond making a fraternal request prompted by the reasons we gave you, and 
■warranted, as we supposed, by the relations of all kinds existing between us. 

You state in your letter that you had directed Mr. Collins to withdraw your 
Article. He informs us that by your direction he stops the printing of it till 
further orders. We, of course, are not either authorized or inclined to give 
him any orders on the subject, and recognize your perfect right to do as you 
think best on mature reflection. 
By order of Association. 

With the kindest regards, I remain most sincerely, 

Your friend and brother, 

JACOB COOPER. 



Maysville, Wednesday, Nov. 13, 1861. 
REV. JACOB COOPER: 

My dear Brother : 

Yours of the 8th inst. was received last night. 
I do not see any reason for altering the decision I communicated to you. 
Mr. Collins, probably, has written to you before this, that he was directed, a 
few hours after the notice to suspend, wholly to withdraw the article. 

Very truly yours, 

ROB'T. L. BRECK. 



THE HABEAS CORPUS AND MARTIAL LAW, 



Martial Law. By S. S. Nicholas. Part of a Pamphlet first 
published in 1842, over the signature of " A Kentuckian." 
Bradley & Gilbert, Printers, Louisville. 

A Review of the Argument of President Lincoln and Attorney - 
General Bates, in favor of Presidential Power to suspend the 
privilege of the Writ of Habeas Corpus. By S. S. Nicho- 
las, of Louisville, Ky. Bradley & Gilbert, Printers. 

Decision in the United States District Court, Missouri, in the 
Matter of Emmet McDonald. The Opinion of the Court 
delivered by Justice Treat. American Law Register, vol. 
9, pp. 661-695. 

Decision in the United States Circuit Court, Chambers, Balti- 
more, Maryland. Before Taney, Chief Justice. Ex Parte 
John Merryman. The Opinion of the Court delivered by 
the Chief Justice. American Law Register, vol. 9, pp. 
524-538. 

The American people are engaged in a great struggle, in 
the progress of which they begin to be, for the first time, 
thrown upon the serious discussion of the most fundamental 
and vital principles of enlightened and constitutional liberty. 
It is an evidence of their past happy exemption from tem- 
pests such as have rocked other great nations, that these 
very elementary principles, these rudiments of liberty, are so 
little known and so feebly apprehended by them. They 
have lived in the almost unparalleled enjoyment of liberty, 



10 THE HABEAS CORPUS AND MARTIAL LAW. 

but have realized no occasion to study it, and have not 
analyzed or denned it. They have sailed upon a smooth 
sea, without the experience of a single storm to awaken 
serious apprehensions for their safety, and have never exam- 
ined the vessel that has borne them, to understand the great 
timbers and braces that hold it together. Yet this which is 
the evidence of the serenity of their past enjoyment, is one 
of the features of peril for the future, in that they may 
unconsciously part with the rights they have but poorly 
studied and little understand, and may be able to regain 
them, if ever recovered, only at the expense of great suffer- 
ing, and treasure, and blood. The struggle for the preserva- 
tion of the Union of our States, in the manner in which it 
has been conducted on the part of the Government, is 
awaking many of the more thoughful of the nation to the 
serious consideration of the great underlying principles of our 
liberty, and is inaugurating another conflict — a conflict for 
constitutional liberty against the encroachments of arbitrary 
power — the issue of which is not less uncertain, and is even 
more momentous to us as a people, and to the world, than 
the issue of the other. Valuable as is the Union, it is yet 
not above estimation. There are inalienable rights the loss 
of which would be poorly compensated by its preservation — 
without which it would not be worth preserving. It may 
be that the fearful struggle for the integrity of the nation — 
if it must go on — does not necessarily involve the sacrifice 
of those rights, if the people will but gird themselves for 
the other conflict which their preservation demands. But 
the time has come when they must array themselves in their 
majesty, and offer a firm and prompt resistance to the 
invasion. 

The papers before us embody the issues which are now 
being thrust upon the nation by the new and startling claims 
of executive prerogative, and the actual exercise of powers 
before unprecedented in our history. Judge Nicholas, the 
author of the first two, is widely known in Kentucky as one 
of the ablest jurists and one of the most patriotic and loyal 



THE HABEAS CORPUS AND MARTIAL LAW. 11 

citizens in the Commonwealth. The first of his pamphlets, 
the greater part of it, was written nearly twenty years since, 
having been occasioned by a speech of Mr. Adams in the 
House, and the discussion in the Senate of the United States 
Congress, upon the refunding to General Jackson the amount 
of the fine inflicted upon him by Judge Hall, for refusing to 
obey the writ of habeas corpus, and violence to the Court, 
under the martial law proclaimed by him in New Orleans. 
In the speech of Mr. Adams and the remarks of lead- 
ing Senators, doctrines were advanced which were justly 
regarded as striking at the roots of our liberty, of which the 
present monstrous usurpation of power by the Executive and 
Military departments of the Government, are the full and 
complete development. A portion of the pamphlet then 
published without the name of the author, possessing a sin- 
gular fitness to the present time, was republished with an 
Appendix in June last. 

The other pamphlet of Judge Nicholas is, of course, a 
recent publication. We give his introductory definition of 
his political status — deemed necessary by him probably on 
account of the severity of his strictures — that we may, so far 
as our influence can reach, clear the way for the circulation 
of the pamphlet, by showing that the trumpet note of warn- 
ing comes from no disloyal quarter: 

"It may be necessary with those to whom the writer is not per- 
sonally known, to premise, that he claims to be a thorough and 
devoted Unionist. He has manifested his right to make that claim 
by having, during the last five years, written and published more, 
probably, than any other man to arouse the nation to a perception 
of the proximate danger to the Union from the treasonable machi- 
nations of secessionists and abolitionists. For all that time he has 
been constantly predicting the present state of national affairs. He 
has assiduously assaulted the secession heresy with argument and 
denunciation. He has done what he could to portray the inestim- 
able value of the Union, and the endless, numberless evils of its 
dissolution. Could there be such a thing as a dictatorship, he 
should deem its powers rightfully employed in decimating leading 



12 THE HABEAS CORPUS AND MARTIAL LAW. 

secessionists and abolitionists, in decimating the members of seces- 
sion conventions, and especially in decimating tbe secession mem- 
bers of the Virginia Convention, the Tennessee and Missouri 
Legislatures, who so signally betrayed popular trust. 

" He believes the present civil war will be long protracted ; that 
we are marching with rapid strides to that military despotism pre- 
dicted for us by the fathers of the Kepublic ; that the preservation 
of the Constitution with those principles of civil liberty which it 
consecrates and secures, is the very highest obligation of patriotism, 
far above the mere preservation of the Union ; that the entire 
destruction of the Constitution and civil liberty is a price the nation 
cannot afford to pay for preserving the Union, even if it were not 
absurd to suppose that the preservation of the one requires the 
destruction of the other ; that it is a gross calumny on the structure 
of our government, to charge that it is too weak to put down the 
present rebellion ; and that if it can not be put down with an army 
of five hundred thousand men, and a large navy, without trampling 
Qn the Constitution, it will be because of the incompetency of the 
President and his Cabinet, and not from any fault in the structure 
of the government. With these views, the writer means persever- 
ingly to use his very humble efforts to stay the march to despotism, 
and earnestly entreats the co-operation of the thousands of far abler 
and younger men scattered through the country. The opinions, as 
to principles now to be vindicated, were all matured and published 
near twenty years age." 

The decision in the United States District Court, Mis- 
souri, is an utterance honorable to the ability and the fidelity 
of that high tribunal. The case was one of very general 
interest throughout the country. It is not necessary to 
narrate all the facts and circumstances connected with it. 
Emmet McDonald, a citizen of Missouri, being a prisoner in 
the United States Arsenal in St. Louis, petitioned the court 
for a writ of habeas corpus, alleging that he was held in 
unlawful confinement; that he was so held under no law or 
authority, civil or military, of the State, but under or by 
color of the authority of the United States ; that yet his 
confinement was by no order of, nor by any process issuing 
from any tribunal of the United States. The writ having 



THE HABEAS CORPUS AND MARTIAL LAW. 13 

been issued, on a demurrer to the return, and a submission, 
by the counsel for the respondent, of the question of juris- 
diction, the decision of the court was rendered. It decides 
that the Federal courts have exclusive jurisdiction to issue 
the writ of habeas corpus whenever the applicant is illegally 
restrained of his liberty under or by color of the authority 
of the United States, and that any Federal judge may issue 
the writ when the applicant is so restrained, though without 
any formal or technical commitment ; reviews the acts of 
Congress — the " Judiciary Act " of 1789 and the " Force 
Bill " of 1833 — and the decisions of the United States 
Courts, by which the question of jurisdiction is to be deter- 
mined; gives the history of the habeas corpus under these 
Acts of Congress, drawn from the adjudicated cases, which 
are cited and commented on ; and concludes by pronouncing 
the court's jurisdiction in the case " clear, positive and 
ample." 

The opinion of Chief Justice Taney at Chambers in Bal- 
timore, is pronounced by the profession " a high, finished 
specimen of luminous, convincing judicial disquisition" — 
" an enduring monument of official fidelity " — " a proud 
evidence of octogenarian ability." It is more than all this. 
It is probably the most important judicial opinion ever 
pronounced in this country. It is the highest and most 
authoritative challenge known under our Constitution, of 
the exercise of despotic power, and of sweeping, destructive 
precedents of Executive usurpation ; and given at a time 
when the question of the supremacy of law in our land, and 
of the sanctity of constitutional guarantees of personal lib- 
erty, possibly for all time to come, is being settled. It is 
such a challenge as must check the progress toward despot- 
ism, or else make it more rapid and resistless, by the 
exposure of its lawlessness, and the natural acceleration of 
evil when it has once broken through the most powerful 
restraints, and begins unblushingly to trample under foot 
the sacred authority of law. It has already been set at 
defiance by the Executive, but it is to be hoped that it will 



14 THE HABEAS CORPUS AND MARTIAL LAW. 

yet arouse the nation, at least when the people have suf- 
fered more and have been put more upon the study of the 
rudimental principles of their liberty. 

The case eliciting the opinion is thus strongly stated by 
the Chief Justice: 

" A military officer, residing in Pennsylvania, issues an order to 
arrest a citizen of Maryland, upon vague and indefinite charges, 
without any proof so far as appears. Under this order his house is 
entered in the night; he is secured as a prisoner, and conveyed to 
Fort McHenry, and there kept in close confinement. And when a 
habeas corpus is served on the commanding officer, requiring him to 
produce the prisoner before a justice of the Supreme Court, in order 
that he may examine into the legality of the imprisonment, the 
answer of the officer is that he is authorized by the President to sus- 
pend the writ of habeas corpus at his discretion, and, in the exercise 
of that discretion, suspends it in this case, and on that ground 
refuses obedience to the writ." 

The arrest was made by Gen. Keim, of Pennsylvania, and 
the prisoner was in the custody of Gen. Cadwallader. A 
copy of the writ or order of arrest was refused to the pris- 
oner's counsel. And it appears that there was no charge of 
any specific act of violation of the laws of the United States, 
but only a general charge of rebellion and treason, without 
the testimony supported by oath, or even the names, of wit- 
nesses. It is not necessary, however, to go into detail of the 
circumstances, both because they are well known, and be- 
cause such cases have since become very numerous. The 
country has become familiar with that by which it was at 
first so much startled. Political prisoners are now numbered 
by the hundred, and even by the thousand — seized in the 
same disregard of the provision of the Constitution that 
no person " shall be deprived of life, liberty, or property, 
without due process of law." Torn suddenly from their 
families — in many cases refused the poor privilege of bid- 
ding their wives and children adieu, or of procuring a change 
of clothing. Denied the right which the Constitution guar- 



THE HABEAS CORPUS AND MARTIAL LAW. 15 

antees to the person accused in all criminal prosecutions, 
"to a speedy and public trial, by an impartial jury of the 
state and district wherein the crime shall have been com- 
mitted ; to be informed of the nature and cause of the 
accusation ; to be confronted with the witnesses against 
him ; to have compulsory process for obtaining witnesses in 
his favor; and to have the assistance of counsel for his 
defense." The officer of the law bearing the great writ of 
habeas corpus, for their protection in this right, dismissed 
with contempt, or repelled at the point of the bayonet. 
Transported to some distant state, where no assistance of 
friends can reach them. Lying now in remote prisons, soon 
to be forgotten in the rapid succession of exciting public 
events, save in the appalling gloom of their desolate homes 
and the hearts of their stricken families — until the jealousy 
of the people shall begin to inquire for them, and their 
indignation burst in tones of thunder upon the ear of the 
oppressor. 

It only remains to be added, to complete the statement of 
the case before Chief Justice Taney, that at the time of the 
arrest of Merryman, the United States District Judge of 
Maryland, Commissioner, District Attorney and Marshal, all 
resided in Baltimore, a few miles from the house of the pris- 
aner, offering a sure and speedy mode of apprehension and 
commitment by " due process of law," if there had been the 
proper evidence to authorize it, and amplest security against 
any detriment to the public interest by delay. Further, 
that after the arrest had been made, and the petition for a 
habeas corpus was presented to Chief Justice Taney at "Wash- 
ington, he did not order the prisoner to be brought before 
him there, but repaired to Baltimore, which is in his circuit, 
that Gen. Cadwallader might not be withdrawn from his 
military post. Under these circumstances, the disobedience 
to the writ was the most direct, deliberate and violent resist- 
ance to judicial authority, in its most august form in this 
land, and in a matter involving one of the most vital prin- 
ciples of the Constitution, and one of the most sacred rights 



16 THE HABEAS CORPUS AND MARTIAL LAW. 

of every citizen ; presenting a case of surpassing interest 
and moment to the American people. 

The Chief Justice examines the monstrous claim of the 
President, of the right " not only to suspend the writ of 
habeas corpus himself, at his discretion, but to delegate that 
discretionary power to a military officer,*and to leave it to 
him to determine whether he will or will not obey the judi- 
cial process that may be served upon him." He holds that 
the President can not in any emergency, or in any state of 
things, authorize the suspension of the privilege of the writ, 
or arrest a citizen, except in aid of the judicial power; that 
this is an authority belonging exclusively to the Legislative 
department of the Government — to Congress. He supports 
this opinion by an examination of the Constitution of the 
United States ; of the English Constitution, which gives the 
power to suspend the writ of habeas corpus to Parliament 
only, and the analogy between the English Government and 
our own ; of the Judiciary Act of 1789 ; and of the history 
of the habeas corpus in England and in the United States. 
He, further, charges that in this case the military authority 
had gone far beyond the mere suspension of the privilege of 
the writ of habeas 1 corpus. It had " by force of arms thrust 
aside the judicial authorities and officers to whom the Con- 
stitution has confided the power and duty of interpreting 
and administering the laws, and substituted military govern- 
ment in its place, to be administered and executed by military 
officers." A military officer in Pennsylvania had assumed 
judicial power in Maryland; had caused an arrest in the 
immediate presence of the competent United States judicial 
authorities and officers; had undertaken to decide what 
constitutes the crime of treason or rebellion ; and had im- 
prisoned, without even a hearing before himself, a citizen of 
Maryland, to remain in confinement during the pleasure of 
those who committed him. Fundamental laws had thus 
been suspended which even Congress has not power to sus- 
pend. For even if the privilege of habeas corpus be suspended 
by the only constitutional power that can suspend it, it still 



THE HABEAS CORPUS AND MARTIAL LAW. 17 

remains among the indestructible rights guaranteed in the 
Constitution, that " no warrant shall issue, but upon probable 
cause, supported by oath or affirmation "; that the accused 
shall be "confronted with the witnesses against him"; and 
shall have " a speedy and public trial, before an impartial 
jury of the state and district wherein the offense shall have 
been committed." 

The venerable Chief Justice thus concludes: 

"Such is the case now before me, and I can only say, that if the 
authority which the Constitution has confided to the judiciary depart- 
ment and judicial officers may thus, upon any pretext, or under any 
circumstances, be usurped by the military power at its discretion, the 
people of the United States are no longer living under a government 
of laws, but every citizen holds life, liberty and property at the will 
and pleasure of the army officer in whose district he may happen to 
be found. 

'•In such a case my duty was too plain to be mistaken. I have 
exercised all the power which the Constitution and laws confer on 
me, but that power has been resisted by a force too strong for me to 
overcome. It is possible that the officer who has incurred this grave 
responsibility may have misunderstood his instructions and exceeded 
the authority intended to be given him. I shall, therefore, order all 
the proceedings in this case, with my opinion, to be filed and recorded 
in the Circuit Court of the United States for the District of Maryland, 
and direct the Clerk to transmit a copy, under seal, to the President 
of the United States. It will then remain for that high officer, in 
fulfillment of his Constitutional obligation, to "take care that the 
laws be faithfully executed," to determine what measure he will take 
to cause the civil process of the United States to be respected and 
enforced." 

The melancholy conclusion of the whole matter was the 
sustaining of the military authority by the President, in the 
continued disobedience to the judicial process and retention 
of the prisoner, thus fixing the initial and the final responsi- 
bility in this violent procedure, upon the highest executive 
officer of our Government. 

The papers which have now been noticed cover the whole 
2 



18 THE HABEAS CORPUS AND MARTIAL LAW. 

ground of the questions to which they relate. It were well 
if they were put into the hands of every citizen of the United 
States. We can only recommend them to our readers, while 
for those under whose eye they may not fall, we develop 
some of the arguments and present some of the authorities 
which they furnish to our hand. 

The writ of habeas corpus has been the great instrument 
for the protection of the personal liberty of freemen, wherever 
men have been free. Its history down to its engrafting from 
the common law into our own Constitution, is thus sketched 
by Judge Kane, of the United States District Court, (4 Am- 
erican Law Register, 13 :) 

"The writ of habeas corpus is of immemorial antiquity; it is 
deduced by the standard writers on the English law from the Great 
Charter of King John. It is unquestionable, however, that it is 
substantially of much earlier date; and it may be referred, without 
improbability, to the period of the Roman invasion. Like the trial 
by jury, it entered into the institutions of Rome before the Christian 
era, if not as early as the times of the Republic. Through the long 
series of political struggles which gave form to the British Constitu- 
tion, it was claimed as the birth-right of every Englishman, and our 
ancestors brought it with them, as such, to this country. At the 
common law it issued whenever a citizen was denied the exercise of 
his personal liberty, or was deprived of his rightful control over any 
member of his household, his wife, his child, his ward, or his servant. 
It issued from the courts of the sovereign, and, in his name, at the 
instance of any one who invoked it, either for himself or another. 
It commanded, almost in the words of the Roman edict, < de libero 
Jiomine exhibendo,' that the party under detention should be produced 
before the Court, there to await its decree. It left no discretion with 
the party to whom it was addressed. He was not to constitute him- 
self the judge of his own rights or of his own conduct, but to bring 
in the body, and to declare the cause wherefore he had detained it; 
and the judge was then to determine whether that cause was sufficient 
in law or not. Such in America, as well as England, was the well- 
known, universally recognized writ of habeas corpus. When the 
Federal Convention was engaged in framing a Constitution for the 
United States, a proposition was submitted to it by one of the mem- 



THE HABEAS CORPUS AND MARTIAL LAW. 19 

bers, that ' the privileges and benefits of the writ of habeas corpus 
shall be enjoyed in this Government in the most expeditious and 
ample manner ; and shall not be suspended by the Legislature 
except upon the most urgent and pressing occasions.' The committee 
to whom it was referred for consideration, would seem to have regarded 
the privilege in question as too definitely implied in the idea of free 
government to need formal assertion or confirmation ; for they struck 
out that part of the proposed article in which it was affirmed, and 
retained only so much as excluded the question of its suspension 
from the ordinary range of Congressional legislation. The Conven- 
tion itself must have concurred in their views, for in the Consti- 
tution, as digested and finally ratified, and as it stands now, there is 
neither enactment nor recognition of the privilege of this writ, except 
as it is implied in the provision that it shall not be suspended. It 
stands then under the Constitution of the United States as it was under 
the common law of English America, an indefeasible privilege, above 
the sphere of ordinary legislation." 

The benefit of this writ has always been the privilege of 
Englishmen from the earliest history of the common law, 
and the earliest period of their national existence — obscured, 
violated, trampled upon, indeed, it has been by arbitrary and 
despotic power, but never relinquished by them. It was not 
created by the Magna Charta nor by the celebrated statutes 
of 25th Edward III, or 31st Charles II. These were but 
recognitions of the privilege by the crown — extorted secu- 
rities of a right already existing — the latter more decisive 
and final, putting an end to abuses and to the long contro- 
versy respecting it. The severest and longest struggles 
between the English Crown and the people related to the 
privilege of this writ, and each issued in a more distinct 
recognition of it, and an ampler security for its undisturbed 
enjoyment, until finally the entire control of it was removed 
entirely beyond the reach of the crown.* Our fathers brought 
it to this continent with the English blood circling in their 
veins. It stood in the common law, which was their heritage. 

* Hallam's Constitutional History, vol. 8, p. 9. 
C. J. Taney, Ex Parte Merryman, p. 531. 



20 THE HABEAS CORPUS AND MARTIAL LAW. 

And when they came to make a government for themselves, 
they put it into their Constitution. 

This great writ, of immemorial antiquity : the right to 
which our English ancestors, through all the period of their 
history, steadily and unswervingly asserted; which they 
vindicated with their blood ; the guarantees of which they 
wrung from royal despots ; which our fathers brought with 
them to this continent and put into their Constitution — this 
great writ the President of the United States now assumes 
to control ; and claims the authority ex officio to suspend the 
privilege of it at his discretion, and even to delegate this 
discretionary power to inferior military officers in every part 
of the country ; and acting under this assumption of authority 
he has caused to be arrested hundreds of citizens who now 
lie in prisons, to continue there during his pleasure. And 
this which might not be done by kings— by Plantageiiets, 
Tudors and Stuarts — without challenge by a jealous people, 
is done by a Eepublican President, about whom the framers 
of our Constitution seem to have been at pains to throw 
restrains to check his power, in view of which an eminent 
member of the British Parliament pronounces him "the 
feeblest executive perhaps ever known in any civilized com- 
munity."* A claim of authority and an exercise of power so 
extraordinary, surely should awaken the jealousy of the 
American people. 

The privilege of the habeas corpus is, of course, not 
removed entirely beyond Constitutional restraint. The exi- 
gencies of the State are imperious, against which no private 
interest can stand. To such cases our Constitution limits 
the suspension of this privilege. It provides, Art. I, sec. 9 : 
" The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when, in cases of rebellion or invasion, the 
public safety may require it." But the authority to judge 
of this necessity — in the opinion of the most eminent author- 
ities, among whom are all our Federal Courts, and, we 

* Sir Edward Bulwer Lytton. 



THE HABEAS CORPUS AND MARTIAL LAW. 21 

believe, in the opinion of all but those who would justify 
themselves in the usurpation of this authority, and their 
partisan supporters — it has not confided to the Executive, 
against whose abuse of power the writ is designed to be a 
protection, but to Congress. The decision of the question 
of necessity, and the suspension of the privilege of the writ, 
are legislative acts, and competent only for the National 
legislature. 

The evidence in support of this view may be reduced to 
three heads. 

1. The analogy between the English Government and our 
own. By the English Constitution the authority to suspend 
the habeas corpus is limited to Parliament. Hallam, in the 
outset upon his great work, The Constitutional History of 
England (vol. I, p. 2),* enumerates five "essential checks 
upon the royal authority," which were found firmly estab- 
lished as early as the accession of Henry VII to the throne, 
of which the last three are as follows : 

" (3.) No man could be committed to prison but by a legal war- 
rant specifying his offense; and by an usage nearly tantamount to 
constitutional right, he must be speedily brought to trial by means 
of regular sessions of gaol-delivery. (4.) The fact of guilt or 
innocence on a criminal charge was determined in a public court, 
and in the county where the offense was alleged to have occurred, by 
a jury of twelve men, from whose unanimous verdict no appeal 
could be made. Civil rights, so far as they depended on questions 
of fact, were subject to the same decision. (5.) The officers and 
servants of the Crown, violating the personal liberty or other right 
of the subject, might be sued in an action for damages, to be assessed 
by a jury, or, in some cases, were liable to criminal process ; nor 
could they plead any warrant or command in their justification, not 
even the direct order of the King." 

Upon this point the authority of Blackstone (1 Com. 135) 
will be conclusive : 

* The edition to which our references are made, is that of Paris, 1841, which 
does not correspond in form to that to which the references in the papers 
before us are made. 



ZZ THE HABEAS CORPUS AND MARTIAL LAW. 

" Of great importance to the public is the preservation of personal 
liberty ; for if once it were left in the power of any, the highest 
magistrate to imprison, arbitrarily, whomsoever he or his officers 
thought proper, there would soon be an end of all other rights and 
immunities. Some have thought that unjust attacks even upon life, 
or property, at the arbitrary will of the magistrate, are less danger- 
ous to the commonwealth than such as are upon the personal liberty 
of the subject. To bereave a man of life, or by violence to confis- 
cate his estate, without accusation or trial, would be so gross and 
notorious an act of despotism as must at once convey the alarm of 
tyranny throughout the whole kingdom ; but confinement of the 
person by secretly hurrying him to jail, where his sufferings are 
unknown or forgotten, is a less public, or less striking, and therefore 
more dangerous engine of arbitrary government. Yet sometimes, 
when the State is in real danger, even this may be a necessary 
measure. But the happiness of our Constitution is, that it is not left to 
the Executive power to determine when the danger of the State is so 
great as to render this measure expedient; for it is the Parliament 
only, or legislative power, that can authorize the Crown, by suspending 
the habeas corpus act for a short or limited time, to imprison suspected 
persons without giving any reason for so doing." 

Such is the English Constitution, from which our fathers 
derived most of their ideas of constitutional liberty. It is 
not probable that they meant to put into the Constitution 
they made for themselves and for their children, fewer guar- 
antees of personal liberty than existed in the one under 
which they had before lived. Especially having just emerged 
from the struggle for Independence, in which they had 
thrown off the old government on account of the abuses of 
power by the Executive, it is not probable that they meant, 
in the new government which they constructed for them- 
selves, to enlarge the power of the Executive. They were 
not dissatisfied with the English Constitution, but with its 
abuses ; nor with the Government, but with the tyrannical 
and oppressive acts in its administration. In their Declara- 
tion of Independence nearly all their complaints are directed 
against the King, the Executive head of the Government. 
This was the power, then, they would be expected to guard 



THE HABEAS CORPUS AND MARTIAL LAW. 23 

most jealously in making a government for themselves, being 
the power from the abuse of which they had suffered most 
in the past. It certainly cannot be supposed that they would 
give to their Executive a more than regal power over the 
liberties of the citizen — a power deemed unsafe, and denied 
to the King under the English Constitution. 

2. The position and natural relation of the clause of the 
Constitution in question — which is the only one in the 
instrument that relates to the suspension of the privilege of 
the writ of habeas corpus. Here the exposition of Chief 
Justice Taney is so luminous and concise, that it would be 
presumption to attempt to give it in any other than his own 
language. 

" The clause in the Constitution which authorizes the suspension 
of the privilege of the writ of habeas corpus, is in the ninth section 
of the first Article. This Article is devoted to the Legislative De- 
partment of the United States, and has not the slightest reference to 
the Executive Department. It begins by providing 'that all legis- 
lative powers therein granted shall be vested in a Congress of the 
United States, which shall consist of a Senate and House of Repre- 
sentatives.' And after prescribing the manner in which these two 
branches of the Legislative Department shall be chosen, it proceeds 
to enumerate specifically the legislative powers which it thereby 
grants, and legislative powers which it expressly prohibits, and, at 
the conclusion of this specification, a clause is inserted, giving Con- 
gress 'the power to make all laws which may be necessary and 
proper for carrying into execution the foregoing powers, and all 
other powers vested by this Constitution in the Government of the 
United States, or in any department or office thereof.' 

" The power of legislation granted by this latter clause is by its 
words cai-efully confined to the specific objects before enumerated. 
But as this limitation was, unavoidably, somewhat indefinite, it was 
deemed necessary to guard more effectually certain great cardinal 
principles essential to the liberty of the citizen, and to the rights and 
equality of the States, by denying to Congress, in express terms, any 
power of legislating over them. It was apprehended, it seems, that 
such legislation might be attempted, under the pretext that it was 
necessary and proper to carry into execution the powers granted, and 



24 THE HABEAS CORPUS AND MARTIAL LAW. 

it was determined that there should he no room to doubt where rights 
of such vital importance were concerned ; and, accordingly, this 
clause is immediately followed by an enumeration of certain subjects 
to which the power of legislation shall not extend ; and the great 
importance which |the framers of the Constitution attached to the 
privilege of the writ of habeas corpus to protect the liberty of the 
citizen, is proved by the fact that its suspension, except in cases of 
invasion and rebellion, is first in the list of prohibited powers — and, 
even in these cases, the power is denied and its exercise prohibited, 
unless the public safety shall require it. It is true that in the cases 
mentioned, Congress is. of necessity, the judge of whether the pub- 
lic safety does or does not require it; and its judgment is conclusive. 
But the introduction of these words is a standing admonition to the 
legislative body of the danger of suspending it, and of the extreme 
caution they should exercise before they give the Grovernment of the 
United States such power over the liberty of a citizen. 

" It is the second article of the Constitution that provides for the 
organization of the Executive Department, and enumerates the 
powers conferred on it, and prescribes its duties. And if the high 
power over the liberties of the citizens now claimed was intended to 
be conferred on the President, it would, undoubtedly, be found in 
plain words in this article. But there is not a word in it that can 
furnish the slightest ground to justify the exercise of the power." 

That a clause standing in the Constitution before the 
clause providing that there shall be a President, and before 
the office has even been named, except in the most incidental 
way, in defining the functions of other departments as they 
connect with it — and put into an article devoted to another 
department — should relate to powers of the President — 
seems hardly possible to be believed by persons having the 
common capacity for the interpretation of written language, 
much less by those trained in our courts and at the head of 
our Government. It is certainly a desperate shift, to base 
the Executive usurpation of this power upon this clause 
of the Constitution. 

3. The opinions of our highest Federal Courts, and of the 
most eminent expounders of Constitutional law. We have 
before us the opinions of Chief Justice Taney and Justice 



THE HABEAS CORPUS AND MARTIAL LAW. 25 

Treat, in two of the courts of the United States. We will 
add only two other authorities, which cannot be surpassed 
in weight with any intelligent American citizen. The first 
is the opinion of the Supreme Court of the United States, 
pronounced by Chief Justice Marshall. In 4 Cranch, 95 
and 101, referring to the Judiciary Act of 1789— and deliv- 
ering the opinion of the Court— that illustrious ornament of 
the American Bench uses this language : 

" It may be worthy of remark, that this act was passed by the 
first Congress of the United States sitting under a Constitution 
which had declared that ' the privilege of the writ of habeas corpus 
should not be suspended, unless when, in cases of rebellion or insur- 
rection, the public safety might require it.' Acting under the imme- 
diate influence of this injunction they must have felt, with peculiar 
force, the obligation of providing efficient means by which this great 
constitutional privilege should receive life and activity ; for if the 
means be not in existence the privilege itself would be lost, although 
no law for its suspension should be enacted. Under the impression 
of this obligation, they gave to all the courts the power of awarding 
writs of habeas corpus. * * * * If at any time the public 
safety should require the suspension of the powers vested by this act 
in the courts of the United States, it is for the Legislature to say so. 
The question depends on political considerations, on which the leg- 
islature is to decide. Until the legislative will be expressed, the 
Court can only see its duty and obey the laws." 

The remaining authority is that of Judge Story, also an 
illustrious name in connection with the Supreme Court of 
the United States. In his Commentaries on the Constitu- 
tion, (3, sec. 1836.) Judge Story says : 

"It is obvious that cases of emergency may arise, which may justify, 
nay, even require the temporary suspension of any right to the writ # 
But as it has frequently happened in foreign countries, and even in 
England, that the writ has, upon various pretexts and occasions, 
been suspended, whereby persons apprehended upon suspicion have 
suffered a long imprisonment, sometimes from design, and sometimes 
because they were forgotten, the right to suspend it is expressly con- 
fined to cases of rebellion or invasion, where the public safety may 



26 THE HABEAS CORPUS AND MARTIAL LAW. 

require it. A very just and wholesome restraint, which cuts down 
at a blow a fruitful means of oppression, capable of being abused in 
bad times to the worst of purposes. Hitherto no suspension of this 
writ has ever been authorized by Congress since the establishment of 
the Constitution. It would seem, as the power is given to Congress to 
suspend the writ of habeas corpus in cases of rebellion or invasion, that 
the right to judge whether the exigency had arisen must exclusively belong 
to that body." 

In the face of such evidence and authorities, it is very 
great hardihood to contend that the clause in the Constitu- 
tion authorizing the suspension of the privilege of the writ 
of habeas corpus, confers this power on the President. It 
seems the plainest thing possible that it confides it exclu- 
sively to Congress. 

But the present Attorney General, who is the constitu- 
tional legal adviser of the President, and must be regarded 
as the exponent of his views and claims in this matter, argues 
that this power is conferred on the President by the official 
oath required of him, by the general charge the Constitution 
gives him to see that the laws are faithfully executed, and 
by the acts of Congress making it his duty to prevent and 
repel invasion and to put down insurrection. And the Sec- 
retary of State, in his recent correspondence with the British 
Minister touching the arbitrary arrest and imprisonment of 
British subjects, boldly renews the Presidential claim of this 
power on substantially the same grounds. Attorney-General 
Bates says : 

" All the other officers are required to swear only ' to support this 
Constitution,' while the President must swear ' to preserve, protect 
and defend it,' which implies the power to perform what he is in so 
solemn a manner to undertake. Then follows the broad, compen- 
dious injunction, to 'take care that the laws be faithfully executed.' 
This injunction, embracing as it does all the laws, Constitution, 
treaties, statutes, is addressed to the President alone, and not to any 
other department or officer. This constitutes him in a peculiar man- 
ner, and above all other officers, the guardian of the Constitution — its 
preserver, protector and defender." 



THE HABEAS CORPUS AND MARTIAL LAW. 27 

Secretary Seward to Lord Lyons says : 

"The President of the United States is, by the Constitution and 
laws, invested with the whole executive power of the Government, 
and charged with the supreme direction of all municipal or minis- 
terial civil agents, as well as of the whole land and naval forces of 
the Union; and invested with these ample powers, he is charged by 
the Constitution and laws with the absolute duty of suppressing 
insurrection as well as preventing and repelling invasion ; and for 
these purposes he constitutionally exercises the right of suspending 
the writ of habeas corpus, whenever and wheresoever, and in whatso- 
ever extent the public safety, endangered by treason or invasion in 
arms, in his judgment requires." 

Alas, that an official oath which by its peculiar solemnity, 
greater than that of any other in the Constitution, indicates 
the jealousy and distrust of executive power felt by the framers 
of the instrument, should be used to uphold the usurpation it 
was designed to guard against ! That a charge of the Con- 
stitution framed with cautious limitation of the power of the 
President, should be made a plea for grasping unlimited 
power ! That acts of Congress which express the national 
sense of the designed limitation of the authority of the execu- 
tive in the Constitution, and of its deposit of supreme power 
with the Legislature, should be held to justify the claim and 
exercise of power that over-rides that of the Legislature itself! 
Mr. Clay, upon the appearance of Gen. Jackson's famous 
Protest, in the Senate expressed unaffected astonishment 
that an official oath should be regarded as containing a grant 
of power, and declared that such a thiug was never before 
heard of. The charge of the President in the Constitution 
is expressed with singular clearness and caution. It is not 
"broad" and "compendious," but explicit and definitive. 
It clothes him with no power to make or judge of laws, or 
to carry on the government according to his wisdom or dis- 
cretion, but enjoins upon him simply "to take cart that the 
laws be faithfully executed." He is not by the Constitution 
" charged with the absolute duty of suppressing insurrection 
as well as preventing and repelling invasion." There is not 



28 THE HABEAS CORPUS AND MARTIAL LAW. 

one word of such a power, or a shred of authority for it, in 
the Constitution, but it is expressly given to the Legislature; 
and in so far as he possesses it, it is by grant of that body. 
The Constitution, in Art. I, Sec. viii, says, that "Congress 
shall have power to provide for calling forth the militia to 
execute the laws of the Union, suppress insurrections, and 
repel invasions" — "to provide for the common defense and 
general welfare of the United States" — "to declare war" — 
"to raise and support armies" — "to provide and maintain a 
navy " — " to make rules for the government and regulation 
of the land and naval forces" — " to provide for organizing, 
arming and disciplining the militia, and for governing such 
part of them as may be employed in the service of the United 
States." Congress, in order to enable the President effect- 
ually to " take care that the laws be faithfully executed," 
has, indeed, in the supreme control which the Constitution 
gives it, put the military and naval power of the Government 
at his disposal for suppressing insurrection and repelling 
invasion ; but then it has in the most explicit and emphatic 
way withheld the power over the habeas corpus, to establish 
the Presidential claim to which, all this array of his other 
powers is made. A bill, drafted probably under the advise- 
ment of Mr. Jefferson, for the suspending of the privilege of 
the writ, was during his administration and the conspiracy 
of Aaron Burr, passed by the Senate, but indignantly rejected 
by the House. Neither Mr. Jefferson nor the Congress of 
his time, thought the suspension of the privilege of the 
habeas corpus was a right ex- officio of the President, but 
evidently regarded it as belonging to Congress, without 
whose authority it could not be exercised by the President. 
And at no subsequent time has Congress conferred this 
power on the President. It remains, therefore, where the 
Constitution has lodged it — with the National Legislature. 
We desire, however, against this claim preferred by the 
eminent men in the Cabinet, that the President by his oath 
and office is constituted "in a peculiar manner, and above 
all other officers, the guardian of the Constitution — its pre- 



THE HABEAS CORPUS AND MARTIAL LAW. 29 

server, protector and defender" — the custodian of our liber- 
ties — to hurl the eloquent and burning words of the great 
Webster, in his speech in the Senate against the Protest of 
Gen. Jackson. Their elegance and force, the solemn warn- 
ing they utter, their singular fitness to the arguments which 
are now being used in favor of arbitrary power, and their 
pertinence to this whole discussion, will justify the length 
of the extract : 

" Would the writer of the Protest argue that the oath itself is any 
grant of power ; or that because the President is to preserve, protect 
and defend the Constitution, he is, therefore, to use what means he 
pleases, or any means for such preservation, protection and defense, 
except those which the Constitution and laws have specially given 
him? Such an argument would be preposterous; but if the oath 
be not cited for this preposterous purpose, with what design is it thus 
displayed, unless it be to support the idea that the maintenance of 
the Constitution and the preservation of the public liberties are 
especially confided to the safe discretion, the true moderation, the 
paternal guardianship of executive power? 

^ ^ >£ >£ y£ ^ 

" Mr. President, the contest for ages has been to rescue liberty from the 
grasp of executive power. Whoever has engaged in her sacred cause, 
from the days of the downfall of those great aristocracies which stood 
between king and people to the time of our own independence, has 
struggled for the accomplishment of that single object. On the long 
list of the champions of human freedom, there is not one name 
dimmed by the reproach of advocating the extension of executive 
authority. On the contrary, the uniform and steady purpose of all 
such champions has been to limit and restrain it. To this end all 
that could be gained from the imprudence, snatched from the weak- 
ness, or wrung from the necessities of crowned heads has been 
carefully gathered up, secured, and hoarded as the rich treasures, the 
very jewels of liberty. To this end popular and representative right 
has kept up its warfare against prerogative with various success ; 
sometimes writing the history of a whole age with blood — sometimes 
witnessing the martyrdoms of Sydneys and llussells — often baffled 
and repulsed, but still gaining on the whole, and holding what it 
gained with a grasp that nothing but its own extinction could compel 
it to relinquish. 



30 THE HABEAS CORPUS AND MARTIAL LAW. 

" Through all this history of the contest for liberty, executive power 
has been regarded as a lion that must be caged. So far from being 
the object of enlightened popular trust — so far from being considered 
the natural protection of popular right — it has been dreaded as the 
great object of danger. 

"Who is he so ignorant of the history of liberty at home and 
abroad — who is he from whose bosom all infusion of American spirit 
has been so entirely evaporated — as to put into the mouth of the 
President the doctrine that the defense of liberty naturally results to 
executive power, and is its peculiar duty ? Who is he that is gen- 
erous and confiding towards power where it is most dangerous, and 
jealous only of those who can restrain it? Who is he that, reversing 
the order of State and upheaving the base, would poise the pyramid 
of the political system upon its apex? Who is he that declares to 
us, through the President's lips, that the security for freedom rests 
in Executive authority? Who is he that belies the blood and libels 
the fame of his ancestry by declaring that they, with solemnity of 
form and force of manner, have invoked the executive power to come 
to the protection of liberty ? Who is he that thus charges them with 
the insanity or recklessness of thus putting the lamb beneath the 
lion's paw? No, sir — no, sir. Our security is in our watchfulness of 
executive power. It was the constitution of this department which 
was infinitely the most difficult part in the great work of creating 
our government. To give the executive such power as should make 
it useful, and yet not dangerous — efficient, independent, strong, and 
yet prevent it from sweeping away everything by its military and 
civil power, by the influence of patronage and favor — this, indeed, 
was difficult. They who had the work to do saw this difficulty, and 
we see it. If we would maintain our system, we shall act wisely by 
preserving every restraint, every guard the Constitution has provided. 
When we and those who come after have done all that we can do, 
and all that they can do, it will be well for us and for them if the 
executive, by the power of patronage and party, shall not prove an 
over-match for all other branches of the Government. 

" I will not acquiesce in the reversal of all just ideas of govern- 
ment. I will not degrade the character of popular representation. I 
will not blindly confide where all experience admonishes to be jealous. 
I will not trust executive poicer, vested in a single magistrate, to keep the 
vigils of liberty. 



THE HABEAS CORPUS AND MARTIAL LAW. 31 

" Encroachment must be resisted at every step. "Whether the 
consequences be prejudicial or not, if there be an illegal exercise of 
power, it must be resisted in the proper manner. We are not to 
wait till great mischief come — till the Government is overthrown, 
or liberty itself put in extreme jeopardy, "We should not be 
worthy sons of our fathers were we so to regard questions affecting 
freedom." 

If the majestic form of the eloquent advocate of constitu- 
tional liberty were raised from the dust, where it sleeps, to 
behold the gigantic strides executive power is now making, 
what would be the inspiration of those lips ? If then his 
words so glowed, how would they now flame ! 

Chief Justice Taney seems to hold that even Congress 
cannot give to the President, in any circumstances, discre- 
tionary power over the writ of habeas corpus. That body, 
however, may, clearly, suspend the privilege of the writ, but 
only in times of rebellion or invasion — and then only when 
the public safety may require it. The framers of the Con- 
stitution thought it safer to entrust this power to a body 
consisting of a number of men chosen from all parts of the 
nation, than to one man. If Congress abuse this power — if 
it be exercised arbitrarily and tyranically, for the oppression 
of citizens on account of their political opinions, or for other 
causes not within the provisions of the Constitution — the 
remedy is easier from the shorter term of office of Repre- 
sentatives. If Congress use this power to prevent the exer- 
cise of the right of free suffrage, to perpetuate itself, or for 
effecting any other great change in the Government, which 
must be immediately arrested to prevent the liberties of the 
people being put permanently beyond their control — then 
there is left only the last resort of an oppressed people, 
which is revolution. 

The conclusion of all we have said, and of all we have 
made others to speak in these pages, in this part of our dis- 
cussion, is that the power to suspend the privilege of the 
writ of habeas corpus has been most jealously guarded by 
the Constitution and confided solely to Congress ; that its 



32 THE HABEAS CORPUS AND MARTIAL LAW. 

exercise by the President is a pure and gross usurpation ; 
that it is a usurpation of a nature that tends to the destruc- 
tion of all our liberties ; and, finally, that if the nation has 
acquiesced in it, we live no longer in a free republic, but 
under a despotism. 

We have now to notice yet greater usurpations by the 
President and the military power he commands. The sus- 
pension of the privilege of the habeas corpus, when it is 
legally accomplished, merely leaves under arrest and without 
a remedy for the time being, the citizen seized to prevent 
his aiding the rebellion or invasion ; but leaves him the right 
when the exigency shall have passed, to a fair trial by a jury 
of his peers; and when abused, only subjects him to such 
tyranny as may be effected through the unjust confinement 
of his person. Martial law — which is nothing else than the 
enforcement of the arbitrary will of the commander-in- 
chief, or of any subordinate to whom he may see fit to 
delegate absolute power in a particular district — destroys 
the legal guarantees of all rights, and exposes them all to 
invasion. Safety in the estate, the person, personal liberty, 
and even life itself, is made dependent upon the mere 
pleasure of the dictator. This enormous power has been 
exercised by the military authorities under the President. 
Martial law has been established in populous cities and over 
extensive districts of country, in States which have not been 
proclaimed to be in insurrection, and in which the Federal 
Courts had continued loyal and uninterrupted in their sit- 
tings. Arrests by military authority, and without civil 
process, have been common all over the loyal part of the 
country. Freedom of speech and of the press have been 
destroyed. The people have not been allowed to say or 
read what they pleased. Newspapers have been suppressed, 
forcibly by the military authorities, or not less effectually by 
the withdrawal of postal facilities. A servile press, lettres 
de cachet, and the Bastile, in place of free discussion, have 
been the instruments for controlling public sentiment. 
Large sums of money have been levied off' of citizens 



THE HABEAS CORPUS AND MARTIAL LAW. 33 

remaining at their homes, designated for their political opin- 
ions. The police of one of our largest cities, occupied by 
the Federal troops, have been dismissed, and others appointed 
in their place. The members elect of the Legislature, regu- 
larly elected by the people, of a State remaining in the 
Union, have been seized before qualifying for their legisla- 
tive duties, and incarcerated for months. A member of the 
Missouri State Convention, in the city of St. Louis, in the 
course of the debates of that body, made a speech against 
the military despotism under the name of martial law, which 
had been established in that city and in that State, though 
avowing himself against the secession of the State ; the next 
day he was lodged in the barracks, the Bastile of the place. 
A judge issuing the writ of habeas corpus, and attorneys pro- 
fessionally making application for it, have been imprisoned. 
And if the reports of newspapers can be credited, citizens 
not taken in arms, have suffered capital punishment without 
judge or jury, upon a charge (of destroying a railroad) cog- 
nizable and easily established or disproved in the courts. 
All rights and all authority — personal, municipal, judicial 
and state — have alike come under the crushing tread of the 
military power. 

What we have to say upon the subject of martial law, 
may be compressed into a few points. 

1. It is complete and utter lawlessness. It is the over- 
throw of all law, and of a class with mobocracy. There is, 
therefore, no authority for it, since there is no authority 
above and beyond the Constitution and the laws. It is 
something which any man has as much right to proclaim as 
another — which is no right at all. 

2. It is a form of lawlessness which, besides being imme- 
diately an invasion of all rights, is disruptive of society in 
the permanent demoralization it tends to produce. It breaks 
down popular reverence for law. The people cannot be 
expected to venerate it when their rulers set it at defiance 
whenever it suits their convenience or pleasure. One such 
scene of violence as has been witnessed in our streets, of 

3 



34 THE HABEAS CORPUS AND MARTIAL LAW. 

resistance to the laws by the arms of the Government — of 
the presentation of a row of bayonets to the civil officer 
bearing the great writ of habeas corpus, for the protection of 
citizens seized in their homes by the military power — is 
more demoralizing than a dozen mobs. 

3. It has not been known in Great Britain for a period of 
nearly two centuries. The courts have decided that it is 
"contrary to the Constitution," and has not "any place 
whatever within the realm of Britain." 

4. There are but two instances of the proclamation of 
martial law in the history of our own country, previous to 
the present civil war. Gen. Washington passed through the 
long struggle of the Revolution, without finding any neces- 
sity for the assumption of this extraordinary power. The 
first of the two cases alluded to, was the establishment of 
martial law in New Orleans, by Gen. Jackson, in 1815, 
during the war with Great Britain ; "which was first con- 
demned as illegal and void by an intelligent court martial, 
then by the District Court of the United States, and after- 
wards by the Appellate Court of Louisiana." The act of 
Congress refunding to Gen. Jackson the amount of the fine 
incurred by him for^that offense against the laws, whatever 
might have been the design in its passage, could not affect 
those decisions. But that act, notwithstanding Gen. Jack- 
son previously expressly declared he would not accept the 
money unless it were understood to be an exoneration of 
himself, cannot fairly be regarded as anything else than a 
tribute to a popular favorite, or a generous extenuation of 
an offense of one who had rendered eminent service to his 
country. It was not the judgment of Congress, or of the 
nation, upon the question in relation to martial law. And 
the act did not pass without the strenuous opposition and 
eloquent warnings of members of the House and Senators, 
who, now that they are dead, are regarded unanimously as 
among the greatest and wisest statesmen their country has 
ever produced ; who were not unwilling to unite in any suit- 
able tribute to great public service, but saw with appre- 



THE HABEAS CORPUS AND MARTIAL LAW. 35 

hension the bearing of the act upon this vast question, and 
the destructive precedent it would seem to establish.; 

The other case of martial law in this country, was its 
proclamation in Rhode Island, by the Legislature of that 
State, during the Dorr Rebellion. The decision of the 
Supreme Court in relation to this case, is claimed to recog- 
nize the right to establish martial law in the United States. 
We, therefore, give at length the observations of Judge 
Nicholas upon it. 

" It may be said of that case, or, at least, of the opinion delivered 
in it, without fear of contradiction from any intelligent lawyer, that 
it is crude, ill-considered, and most loosely expressed. 

" The question presented for decision was the validity of a statute 
of the Legislature of Rhode Island which professed to ' establish 
martial law over the State,' and whose validity had been recognized 
by its courts. The Supreme Court decided that this being a matter 
of pure local statute law, its decision, according to uniform usage, 
must conform to the decision of the local courts. This being de- 
cided, there was nothiug left in the case, and the remainder of the 
opinion is mere obit")- dictum. So far as the obiter dicta of Chief 
Justice Taney, in delivering the decision, may be construed into an 
implied concession that Congress may establish martial law, they are 
in direct conflict with his recent decision in the Merryman case. 
But it is due to him to say that there is not the slightest intimation 
of any such power in the President or other military commander, 
and the recognition of the power in the Rhode Island Legislature 
was, no doubt, caused by the fact of the people of that State living 
then under the old colonial charter, without the protection of a writ- 
ten Constitution or bill of rights. From this fact, he and the State 
Court most probably inferred a power, like that of the omnipotent 
Parliament, to establish martial law. 

"He seems to have labored under some loose impression that there 
was some other and different kind of martial law intended by the 
Rhode Island Legislature than that formerly in use in England, 
known under the significant definition of the will of the 'military 
commander ' — something between that and the law of Congress, or 
of a State, for the government of the army or militia ; for he 
says : ' No more force, however, can be used than is necessary to 



36 THE HABEAS CORPUS AND MAKTIAL LAW. 

accomplish the object ; and if the power is used for the purposes of 
oppression, or any injury willfully done to person or property, the 
party by whom, or by whose order, it is committed, would undoubt- 
edly be answerable." There is nothing of arbitrary power in this, 
but the reverse. It is nothing but the kind of power which the 
military may lawfully use, and must use, when called in aid of the 
civil authority to suppress rebellion, and entirely within the limits 
of the military law as prescribed by Congress. Again, he says: 
' We forbear to remark upon the commissions anciently issued by 
the king to proceed against certain descriptions of persons by the law 
martial. These commissions were issued by the king at his pleasure, 
without the concurrence or authority of Parliament, and were often 
abused for the most despotic, oppressive purposes. They were 
finally abolished and prohibited by the petition of right. But they 
bear no analogy in any respect to the declaration of martial law by 
the legislative authority of the State, made for the purpose of self- 
defense, when assailed by an armed force.' 

" This shows he must have labored under the delusion referred 
to ; yet he could scarcely have committed a greater mistake. There 
is not, never was, any such intermediate kind of martial law. The 
books furnish no trace or intimation of anything of the kind. The 
old martial law is the only one known or ever heard of. Conse- 
quently that and none other must be what is meant whenever mar- 
tial law is proclaimed by statute or military order under that name 
or designation. Consequently, also, what he seemingly makes the 
Court say can have no bearing on the matter under discussion, 
except as a strong intimation against the power of even an unre- 
strained Legislature to establish the old, the only martial law in this 
country. 

"With these exceptions, martial law is without precedent 
in this country; and our readers must judge how far these 
go to sustain it. These apart, the whole course of American 
history is against it. Our fathers passed through seven years 
of foreign and civil war without once resorting to this violent 
measure. In the war of 1812-15, other cities were as much 
threatened as New Orleans, and the National Capital actually 
fell into the hands of the enemy ; yet nowhere else was mar- 
tial law proclaimed. 



THE HABEAS CORPUS AND MARTIAL LAW. 37 

5. It is the highest treason against the Constitution. It 
is not only a violation of its special provisions for the protec- 
tion of citizens, that no person shall be " deprived of life, 
liberty or property, without due process of law ;" " that the 
right of the people to be secure in their persons, houses, 
papers and effects against unreasonable searches and seizures 
shall not be violated, and no warrant shall issue, but upon 
probable cause, supported by oath or affirmation, and partic- 
ularly describing the place to be searched, and the persons 
or things to be seized ;" that " the trial of all crimes, except 
in cases of impeachment, shall be by jury; and such trial 
shall be held in the State where the said crimes shall have 
been committed "; that " no person shall be convicted of 
treason, unless on the testimony of two witnesses to the 
same overt act, or on confession in open Court"; that " no 
attainder of treason shall work corruption of blood, or for- 
feiture, except during the life of the person attainted"; that 
" no capitation or other direct tax shall be laid, unless in 
proportion to the census"'; that " no soldier shall, in time of 
peace, be quartered in any house without the consent of the 
owner, nor in time of war, but in a manner to be pre- 
scribed by law"; and that " in all criminal prosecutions, the 
accused shall enjoy the right to a speedy and public trial, by 
an impartial jury of the State and district wherein the crime 
shall have been committed, which district shall have been 
previously ascertained by law, and to be informed of the 
nature and cause of the accusation; to be confronted with 
the witnesses against him; to have compulsory process for 
obtaining witnesses in his favor, and to have the assistance 
of counsel for his defense." It is not only a violation of 
these particular provisions, and of the parts of the Constitu- 
tion which define the functions and limit the power of the 
different departments of the Government — and, indeed, it 
might be said, of every separate article and section oi' the 
Constitution, which is a nicely adjusted system of rhecks 
and balances, no part of which can be violently disturbed 
without derangement extending to every other part. It is 



38 THE HABEAS CORPUS AND MARTIAL LAW. 

more than this. It is a conspiracy against the Constitution 
as a whole. It denies its supremacy, by setting a power 
above it. It abolishes it. It strikes at the life. It is treason. 
The blood-vessels may be one by one wounded or severed, 
and a skillful surgeon may possibly cicatrize them or tie them 
up ; but a stab in the heart is a wound without remedy, and 
fatal. 

It scarcely requires the citations we have made from the 
Constitution, to prove that martial law cannot consist with 
it. It is manifest that an instrument designed to be the 
supreme law of the land cannot require any law above it ; 
and that that which assumes to be above it, is treason. In 
officers of the Government who have sworn to sustain the 
Constitution, it is the highest crime — compared with which 
the offense of those who, openly flinging away the Constitu- 
tution, have sought to vindicate their claim to separate self- 
government in Revolution, cannot, certainly, be a greater 
wickedness, or result in greater calamity to the country. 

All that has now been said upon these great questions, the 
demagogue or partisan advocate may treat simply with a 
sneer; and it may serve as well his ends, and be as effective 
upon those who follow him in blinding admiration, as the 
most solid argument. But with serious, thoughtful and 
patriotic men, who have no end but the welfare of their 
country to subserve, and have an intelligent appreciation of 
Constitutional liberty, the deliberate and official opinions of 
the ablest jurists of England and America, and the appre- 
hensions and warnings of our greatest statesmen, cannot be 
so disposed of. There is another class of persons who, being 
not without apprehension for the future effects of the present 
extraordinary measures of the Administration, yet filled 
with a sense of the exigency upon the Government, are for 
holding these questions in abeyance until our national diffi- 
culties are settled. They urge that we should first save the 
country, and then settle questions of Constitutional law. We 
may ask, what is it they will save ? What will be a mere 



THE HABEAS CORPUS AND MARTIAI LAW. 39 

integrity of external union, if the country shall come out of 
the contest with the Constitution shattered, the people demor- 
alized by lawlessness, and destructive precedents lor the exer- 
cise of arbitrary power established which can never be recalled? 
A third class advocate without qualification the principle of 
despotic power, that State necessity is a law higher than the 
Constitution and all legislative enactments, which sweeps 
away all legal restraints by abolishing all other law, as long 
as the necessity exists. This principle belongs to the French 
Revolution, from which it is derived. It cannot be that the 
American people are prepared to accept it. It cannot nestle 
amid Republican institutions. It cannot be brought near 
the Constitution without mutual repulsion. What is the 
worth of the Constitution if it be of force only in peaceful 
and tranquil times? It is precisely in times of great agita- 
tion and peril the citizen needs, and it was designed to give 
him, protection. It is from the storm and tempest he needs 
a shelter. And what is to stay the onward march to despot- 
ism, if we lower this last rampart of freedom before it, and 
pave a way for it over the Constitution itself? Will our 
countrymen uphold this sacrilege, or stand calmly and 
silently by and see it perpetrated ? 

We conclude the whole of what we have to say, with the 
expression of the deliberate conviction, that if it were demon- 
strated that the alternative to the invasion and prostitution 
of the Constitution, is a partition of the country, painful as 
it is, it were better to accept the alternative; not as an 
acknowledgment of the particular weakness of our Govern- 
ment; but in recognition of the inherent weakness of all 
the works of man; and in submission to the ordination of 
Providence — that the power and stability of the Almighty 
cannot be imparted to human institutions. 



